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Cite as: [2004] LLR 334, 2004 SCLR 386, [2004] ScotCS 49

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Irvine, Re Petition for Judicial Review [2004] ScotCS 49 (27 February 2004)

OUTER HOUSE, COURT OF SESSION

OPINION OF LADY SMITH

in the Petition of

YUILL IRVINE

Petitioner;

for Judicial Review of a decision of

THE ROYAL BURGESS GOLFING SOCIETY OF EDINBURGH

Respondents:

________________

For Petitioners: Logan; Somerville & Russell.

For Respondents: Drummond; Brodies.

27 February 2004

[1] The petitioner is a member of the respondents, a golfing society which was founded in 1735. The Society owns and manages a golf course and clubhouse on the north side of Edinburgh. It is governed by a Council which controls and manages the respondents' whole business and affairs, including membership matters. On 30 June 2003, the Council decided to suspend the petitioner from membership for a period of 12 months.

[2] The petitioner seeks judicial review of the decision to suspend him, challenging it on the ground that it was made contrary to the rules of natural justice, and seeks an order for repayment of his wasted subscription dues.

Rules of the Society:
[3] The circumstances in which the Council has power to suspend a member are set out in the respondents' rules, which are contained in the Member's Handbook (6/1 of process). Rule X(2) provides:

"If the conduct of any Member is such as appears to the Council to endanger the character, interests or good order of the Society, or if any Member shall wilfully disobey any order of the Council communicated to him, or shall refuse or fail to pay any penalty inflicted on him, it shall be in the power of the Council, after calling on the Member for an explanation, to suspend such Member with immediate effect on a vote by ballot, supported by two-thirds of those present and voting, for a period not exceeding 1 year. A Member so suspended shall remain liable for such subscription and assessment raised in respect of his period of suspension."

[4] The Rules make no provision for appeal against any such penalty or suspension. The Rules also provide that the Council has power to engage a secretary and that such secretary will be responsible for the conduct and management of the affairs of the respondents, subject to the directions of the Council. The secretary is not to be a member.

Narrative of events:
[5] The circumstances in which the petitioner came to be suspended can be gleaned from the averments and from various documents that were lodged by both parties. It was agreed that reference could be made to those documents for the purposes of the hearing. On Monday 2 June 2003, the petitioner was a participant in a charity golf event, organised by a Mr Logue, who was also a participant, for the "Wooden Spoon Club", which took place at the respondents' course. The participants were a mixture of members and guests. The petitioner did not have any guests. Golf was played and the participants appear to have gone into the clubhouse, changed and had something to eat and drink. Some of them, including the petitioner, then returned to the first tee, at about 7.15 p.m., without changing back into golf attire, and took practice swings there. The respondents' dress code is so drafted that clothing that would be acceptable within the clubhouse would also be acceptable dress for play, apart from footwear, since it specifies that only golf shoes can be worn on the course. Accordingly, insofar as the participants were wearing ordinary shoes when taking practice swings at about 7.15 p.m., they were in breach of respondents' dress code. In such circumstances, the secretary is authorised to request such persons to leave the course.

[6] Mr Donald Robertson, a member who was in the "Spike Bar" within the clubhouse, having observed the activities of the petitioner and the other participants on the first tee, made a suggestion to the bar staff that they were not in keeping with the behaviour that one would associate with the respondents. He confirmed having done so in a letter dated 22 June 2003 (7/3 of process). The precise nature of the inappropriateness of their behaviour other than that they were not wearing the appropriate shoes is not detailed in the documents available nor is it detailed in the respondents' answers to the petition beyond describing it as being that of generally causing a disturbance. Further, no specification is given of any particular activity or behaviour that the petitioner was said to have been engaged in. The secretary, Mr Seeley, was involved in a meeting of the Council at that time but he was called out of the meeting to deal with the complaint. He went and spoke to the group of which the petitioner was part and asked them to leave the course, which they did.

[7] About forty-five minutes later, the petitioner returned to the course and played three holes of golf. He had, in the meantime, changed into suitable attire. Mr Seeley went and spoke to the petitioner again. No other complaint about his behaviour appears to have been made to him at that stage although Mr Seeley did comment, in his subsequent letter to the petitioner, that he, the petitioner, had openly stated that he had just played the first three holes of the course carrying only a handful of clubs and no golf bag. Neither the Society's rules nor its bye laws require that players use a golf bag. The petitioner had not, at that stage, been suspended from membership and it is difficult to ascertain what the basis was for Mr Seeley having objected to him playing when he was properly dressed. It seems to have been subsequently regarded as a matter of the petitioner having challenged Mr Seeley's authority but there is no suggestion of Mr Seeley having instructed the petitioner not to return to the course that evening. Indeed, in the circumstances, since the petitioner was a member, it is difficult to see how he would have had the authority to do so in the absence of some specific reasonable apprehension that the petitioner would misbehave whilst playing.

[8] Mr Seeley's letter on behalf of the respondents to the petitioner was dated 8 June 2003 (6/2 of process) and was in the following terms:

"Dear Sir

The Council Meeting of Monday 2 June was interrupted at 7.15 p.m. by the receipt of a complaint from a member via the Senior Barman that a group of people were taking practice swings on the first tee and generally causing a disturbance.

Having identified you as part of the group, I asked you and your guests to leave the Course in order that the good day enjoyed by everyone would not be spoiled. You complied with my request and I returned to the Council Meeting.

I was subsequently advised that you had returned to Course and left the meeting to confirm this report.

I spoke to you on the veranda where you openly informed me that you had played the first three holes with just a handful of clubs and no golf bag.

The general demeanour of you and your guests was a cause of concern to the staff on duty until the time you left the premises.

It is unacceptable that you chose to do as you please with total disregard to others, including disrupting a Council meeting. Furthermore, your conduct gave a bad impression of the Society to your guests.

I also note you have previously received a written warning about your future conduct.

I am obliged to report this matter to Council and I shall be grateful for your response to this letter before 23 June 2003.

Yours sincerely

Graeme Seeley

Secretary"

[9] The reference to a previous written warning was a reference to an incident that occurred in 1996 as result of which the petitioner had been fined £50 and received a written warning.

[10] That letter was the only written notification of complaint received by the petitioner. He responded by letter dated 16 June 2003 (6/3 of process), stating that he entirely refuted the allegations and requesting a meeting with Mr Seeley and the Society's captain, Mr Hall, to discuss matters. A meeting was, accordingly, arranged and it took place on 25 June 2003. It was attended by the petitioner, Mr Hall and Mr Kelly, the office bearer of the society known as "Green Ranger". Mr Hall prepared a report of the meeting (7/4 of process) to present to the next meeting of the Council of the Society.

[11] It is evident from that report that Mr Hall referred the petitioner to the complaint that he had behaved inappropriately on the evening of 2 June, following the "Wooden Spoon" golf outing. In so doing, he referred the petitioner to a number of matters which went beyond the allegations that were contained in Mr Seeley's letter of 8 June. Reference was made to Mr Robertson's letter, to a letter from the club steward, a Mr Forbes (7/18 of process), and to a letter from another member, Dr Stuart (7/5 of process). Mr Forbes' letter complained about the behaviour of the group of which the petitioner was part, in the members' lounge, on 2 June 2003, describing it as loud and disagreeable and to their having moved out to the first tee "in outdoor clothes and footwear". It also referred to the petitioner having done the "same last year". Dr Stuart's letter referred to an incident that had taken place a year earlier, on a Monday evening, when he had observed three men in lounge suits, carrying one golf club each, playing the first hole when it was evident that they "had enjoyed considerable refreshment earlier in the day" and their behaviour was "not appropriate". They were asked to leave the course, as had been confirmed to Mr Hall by Mr Heanes, a Council member who had requested them to do so.

[12] The report also records that Mr Hall indicated to the petitioner that he was extremely annoyed that the Council meeting had been disrupted, that Mr Robertson, who was entertaining guests, had been sufficiently upset to complain, that the petitioner had, after acceding to the Secretary's request not to play golf, changed into golf attire and played three holes, and that his behaviour had led to the steward and his wife advancing their retirement date. Mr Hall does not appear to have suggested that the petitioner should have realised that a Council meeting was taking place or that it would be disrupted by the events on the first tee.

[13] Further, the report states that Mr Hall drew the petitioner's attention to the terms of Rule X(2) and told him that he considered the allegations to be serious "especially since there was a previous record of misbehaviour". It states the petitioner's response as being to the effect that he was one of a group and being unfairly singled out in circumstances where he had not been drunk and had not, himself, had guests at the event. He was playing with another member who had guests. It goes on to express the view that the petitioner had some justification in saying that he was being singled out, noting that Mr Robertson's and Dr Stuart's letters did not mention him by name at all and that Mr Forbes' letter referred to there being others involved along with the petitioner. The following passage then appears in the report:

"He is, however, the common factor in all these episodes of inappropriate behaviour and has, therefore, a reputation for potentially causing trouble .........

CONCLUSIONS

As a member of the Society, he should have ensured the behaviour of the company he was in should not have caused concern to another member and his guests.

Embarrassment was also caused to Society staff by the unseemly behaviour.

A Council meeting was interrupted twice by the unseemly behaviour.

He failed to show restraint and comply with the request from the Secretary not to play golf.

Although not reported in writing, he was one of a group asked to leave the course a year ago for inappropriate behaviour.

He has two documented incidents of misconduct in 1990 and 1996.

In 1996 Council agreed unanimously that he was fined £50.

At that time he was warned that his future conduct and that of those in his company, be impeccable at all times.

His conduct appears to endanger the character, interests and good order of the Society which is in breach of Rule X(2) of the Constitution."

It is, accordingly, apparent that the matters taken into account by Mr Hall in reaching the conclusion that the petitioner was in breach of the rule went beyond the complaints contained in Mr Seeley's letter. The report does not appear to have been made available to the petitioner.

[14] The petitioner then wrote to Mr Hall, in a letter dated 29 June 2003 (6/5 of process). The letter referred to the meeting of 25 June. It began:

"Firstly, if I can confirm that the meeting was held at my request following a letter from Mr Graeme Seeley dated 8 June 2003 at which I was requested to respond to his letter. At our meeting you opened by stating that it was a disciplinary meeting however my own understanding was that it was at my request following my letter of 16 June 2003. I had asked to meet with yourself and Mr Seeley although no reason was provided for his non-attendance at the meeting."

It also contained a detailed response to the allegations set out in Mr Seeley's letter of 8 June 2003. It asked for details of the complaints that were outlined at the meeting of 25 June regarding an incident 12 months earlier under reference to the letters from Mr Forbes, Mr Robertson and Dr Stuart. It queried the relevance of the incidents of 1990 and 1996, stressed that he had no guests with him on 2 June, indicated that the concern expressed by Mr Seeley at the incident on the first tee had been the attire of those present rather than their conduct or demeanour, specified the names of three members that he was with on 2 June and indicated that the petitioner had no idea that going out to play with three golf clubs would disrupt the Council meeting. Towards the end of the letter, the petitioner wrote:

"I look forward to receiving the copy complaint letters from you and in due course receiving the outcome of your investigations which will no doubt involve you interviewing other members at the event rather than a select few. In addition I look forward to receiving some of the specific issues that have highlighted Yuill Irvine's conduct above all other members and guests involved at the event."

That letter arrived at the respondents' premises on 30 June, the day of a Council meeting. I was advised in the course of submissions, by counsel for the respondents, that the letter had arrived about half an hour prior to the meeting which began at 6.30pm. It does, however, appear, from the meeting note, that it had arrived at 3 p.m. The matter of the complaints regarding the petitioner's behaviour was the last item on the agenda at the meeting and that item was reached at about 9 p.m. It is not clear whether the petitioner was aware of that matter being on the agenda at that meeting and it does appear, judging by the comments towards the end of his letter regarding his expectation that investigations would ensue, that he did not expect any decision to be taken at that meeting on the question of whether or not he was in breach of rule X(2).

[15] The petitioner's letter was taken to the Council meeting by Mr Hall but was not copied to members. Normal practice would have been to circulate a letter relating to an item on the agenda, to members. The explanation for that not having been done in this case was indicated by counsel for the respondents to be that Mr Hall did not think it appropriate that the last paragraph of the letter, which made some personal remarks about an individual member of Council, should be circulated. The last paragraph is only three lines long and appears at the end of a three and a half page letter. It was conceded that the letter could have been copied in a manner which concealed that paragraph. That was, however, not done.

[16] The respondents had lodged an affidavit from Mr McCulloch, a member of Council (7/19 of process), and it is evident from it that when the matter of the petitioner's behaviour was reached on the agenda, Mr Hall passed the petitioner's letter to Mr McCulloch and asked him to comment on it. By that stage, Mr Hall had advised members of the content of his report of the meeting that had taken place with the petitioner on 23 June and he asked Mr McCulloch to comment whether there was anything in the petitioner's letter which was additional to that which was covered by his report. Mr McCulloch did not read out the petitioner's letter to the meeting. He paraphrased parts of it. Judging by his affidavit, he does not appear to have made any specific reference to the petitioner's indication that although he was with members who did have guests, he himself had no guests at the event on 2 June, or to his identification of three members in whose company he was that day, or to his questioning the relevance of the two events in 1990 and 1996, or to the fact that, judging by the tenor of the letter, particularly the penultimate paragraph, it seemed to be the petitioner's understanding that investigations into the events complained of were still ongoing.

[17] The note of the Council meeting states that Mr McCulloch advised the Council, under reference to the petitioner's letter, that his defence was not a defence, that it was, perhaps, mitigation, that there was nothing in his letter to make Mr Hall's conclusion that he was in breach of rule X(2) less viable and that the petitioner was endeavouring to ensure that there was no penalty.

[18] Mr Seeley took notes during the Council meeting on 30 June and a typed extract from those notes was made available (7/8/5 of process). The Council agreed with the conclusion of Mr Hall's report and found the petitioner to have been in breach of rule X(2). In reaching their decision that the petitioner was in breach of the rule, it appears from the note that the Council took account of the matters covered in Mr Hall's report and of the content of a letter (7/6 of process) dated 28 June 2003, signed by nine members, expressing concern at the fact that the steward and his wife were taking early retirement: "as a consequence of an incident which occurred at the club." and stating: "We understand that Alistair was the subject of verbal abuse from a member and this was not the first time that this distasteful outburst had occurred." The authors of the letter also expressed the hope that "appropriate action" would be taken against "the offending member". The petitioner was not named in the letter. It appears that the Council were also given some explanation of the nature of the incident the previous year that was referred to in Mr Forbes' and Dr Stuart's letters, by Mr Heanes, to the effect that it involved misbehaviour by the petitioner. Further, there is reference to Mr Kelly having given them information about comments made by the petitioner, in the course of the meeting of 25 June, which were indicative of him showing scant regard for the Council in what seems to have been regarded as a disappointing response to the complaints that were being made against him. He also seems to have indicated that the petitioner had issued an implied threat in respect of his view that a Council member had been gossiping about him. The petitioner appears to have been criticised for these matters and the fact of his failure to show remorse, in particular, then seems to have featured amongst the matters founded upon by the Council in reaching their decision. In short, they took into consideration the matters relied on by Mr Hall in his report and also some matters that were not included in it or in Mr Seeley's letter to the petitioner.

[19] Regarding penalty, Mr Hall recommended that the petitioner receive a 12-month suspension. The Deputy Captain, Mr Malcolm, appears to have indicated to the Council that there was no appeal available to the petitioner against either a suspension or a fine, which was correct. The Council then proceeded to impose the maximum penalty, namely 12 months suspension. That decision seems to have been recorded as being a unanimous one although one member abstained.

[20] I was advised by counsel for the respondents that although Mr Hall told the Council that he had received the letter of 28 June and that it contained allegations of verbal abuse (the implication, it seems, being that the allegations were being levelled at the petitioner) he explained to the Council that that allegation had not been made by Mr Forbes and should, accordingly, be ignored. It seems though, that the remainder of the content of the letter was treated as being available for consideration by the members. If it was not, it is difficult to see why the letter was referred to at all. That remaining part explained that the nine authors of the letter understood some member (by implication, the petitioner) to have been solely responsible for the early departure of the steward and his wife and that they were urging that something be done about him. The existence and content of that letter had not, however, been made known to the petitioner.

[21] Nor was the petitioner made aware of whatever it was that was said by the member of Council who had been present at the incident which was alleged to have taken place the previous year. Further, it seems that, despite the request in his letter for further specification regarding that incident, none was given to him. According to the note of the meeting a view was expressed that the petitioner should be allowed to have copies of the letters that had been written by Mr Robertson and Dr Stuart but the view was also expressed that the Council owed a duty of care "to the members who have assisted us", to keep those letters confidential and it seems that the latter view must have prevailed. Nor was his query as to the relevance of the events of 1990 and 1996 dealt with. I note, in passing, that the reference to the authors of the letters as being members who had assisted the Council seems somewhat inappropriate in the circumstances, tending as it does, to give the impression that those members had assisted the Council to reach the result that they wanted to reach.

Submissions for the petitioner:
[22] Counsel for the petitioner submitted that the procedure adopted by the respondents breached the rules of natural justice. In particular, he referred to the petitioner's right to know the nature of the charges levelled against him (St Johnstone Football Club Ltd v Scottish Football Association Ltd 1965 SLT 171; Stewart v Secretary of State for Scotland 1996 SLT 1023; R. v Civil Service Appeal Board ex parte Cunningham [1991] IRLR 297; Murphy v The General Teaching Council for Scotland 1997 SLT 1152; R v Secretary of State for the Home Office ex parte Doody [1994] 1 AC 531). He was entitled to have the rules of the society with which he had a contractual relationship applied to him fairly (Calvin v Carr [1980] AC 574). The only specific charges communicated to the petitioner were those contained in Mr Seeley's letter of 8 June. However, by the time matters were considered by the Council on 30 June, the charges had, he said, been added to in that Mr Forbes was also complaining of rowdiness in the lounge bar, the petitioner was being criticised in terms of the letter of 28 June, the petitioner was being criticised in respect of an alleged incident a year earlier, and he was being criticised for having failed to comply with a request from the secretary. Counsel founded on the participation in the decision making process of the Council of Mr Hall, Mr Heanes and Mr Kelly and the presence during the decision making process of Mr Seeley. Given their prior involvement as, in the case of Mr Heanes and Mr Seeley, witnesses to the events complained of, in the case of Mr Hall, as "prosecutor" and in the case of Mr Kelly, the person who assisted Mr Hall, their participation and presence in the decision rendered the Council other than an impartial body (Graham v Ladeside of Kilbirnie Bowling Club 1990 SC 365; Brown v Executive Committee of the Edinburgh Labour Party 1995 SLT 985). Further, the respondents failed to provide reasons and the constitution fails to afford the petitioner any right of appeal. Those circumstances should be regarded as an aggravation (R v Civil Service Appeal Board ex parte Cunningham; Dundee United Football Co Ltd v Scottish Football Association 1998 SLT 1244) ..

[23] Overall, counsel for the petitioner submitted, it was clear that the petitioner had been subjected to a "witchhunt" and had not had his case considered by an impartial, quasi-judicial body sitting in judgement. In so submitting, he said that it was evident from the circumstances that the Council had, in the case of several members, already made up their minds, did not want to know what evidence might exonerate the petitioner, were not concerned to set out the precise charges against him, did not feel it necessary to provide him with all the information that they were taking into account, were not concerned to know the content of his written submissions, were not willing to give him a hearing, and determined that the maximum sentence available should be imposed knowing that he had no right of appeal and in circumstances where it was acknowledged by the captain in his report that the petitioner was, to an extent, justified in his complaint of being "singled out".

Submissions for the respondents:
[24] In response, counsel for the respondents submitted that there had been no breach of the rules of natural justice. The nature of judicial review was that it was not a matter of looking at the merits of the case. Rather, it was one of examination of the process used. The discretionary remedy of judicial review should not be used lightly. The courts should refrain from interfering in the running of sporting bodies (McInnes v Onslow-Fane [1978]WLR 1520), should be reluctant to impose procedural duties in circumstances where a person has signed up to a process and the process has been carried out (Calvin v Carr [1980] AC 574; University of Ceylon v E.F.W Fernando [1960] 1 WLR 223). A golf club should not be subjected to the strict procedural rules that would be applicable in the courts (R. v Secretary of State for the Home Department ex parte Doody), it was sufficient to give the member of a club intimation of the gist of the charge against him (McInnes v Onslow-Fane; R. v Secretary Of State for the Home Department ex parte Doody; R. v Secretary Of State for the Home Department Ex parte McAvoy [1998] 1 WLR 790), whilst the test for bias was whether there would be suspicion of bias in the mind of the reasonable person, it was inevitable in the case of a voluntary association that there would be members of its governing body, such as the Council in the present case, who may have prior knowledge of the member's background when considering a disciplinary matter but that did not mean that the test for bias was necessarily met (R. v Board of Visitors of Franklin Prison ex parte Lewis [1986] 1 WLR 130; Ward v Bradford Corporation and others [1972] 70 LGR 27), and there being no obligation on a body such as the respondents to give reasons for its decisions (Bass Taverns Ltd v Clydebank District Licensing Board 1995 SLT 1275; Dundee United Football Club Ltd v Scottish Football Association), it could not be assumed that there was a breach of natural justice because no reasons were given. The respondents had done what was required of them in this case in that the petitioner had been given notice, in terms of Mr Seeley's letter, of the gist of the charge against him, he had been asked for a response which he had given, initially in his letter dated 16 June 2003, then at the meeting which took place with Mr Hall and the Green Ranger and then in his letter of 29 June 2003. The courts should only intervene in extraordinary cases and the grounds relied on by the petitioner did not put this case in that category. Counsel for the respondents accepted that the task for the Council in considering whether or not the petitioner was in breach of Rule X(2) involved a two-stage process. Firstly, it was necessary to ask whether the member's conduct appeared to endanger the character, interests or good order of the society. If it was determined that it did, then it was necessary to decide whether the member was to be suspended and if so, for how long, bearing in mind that the maximum period for which a member could be suspended was a period of one year.

Discussion:

[25] I agree with the respondents that a golf club is not to be expected to conduct its proceedings in the same way as would a court and that, as some of the authorities relied on show, the court is usually slow to interfere with the proceedings of such a body. It does not, however, seem to be the case that there is any recognised principle that the court should refrain from exercising the power of judicial review where the body whose decision is under attack is a sporting body. Indeed, the case of McInnes v Onslow-Fane, which was relied on by the respondents in support of that submission, was one in which the entitlement of the court to intervene in the procedures of a sporting body not governed by statute or contract, so as to enforce the appropriate requirements of natural justice and fairness, was affirmed. Further, the circumstances in which the decision to suspend the petitioner from membership was made in this case call for examination. Whilst to some, the tensions between a golf club and its members whether in respect of their mode of dress or the volume of their exuberance, may seem trivial, two things arise in the present case which underline the importance of the present dispute, at least to the petitioner. One is the amount of the membership fee which is significant. The annual membership dues amount to £945 per annum and, as a result of his suspension from membership, the petitioner has, thus far, been deprived of the benefit of over half of that sum. The other is that the petitioner is the managing director of a public limited company that provides financial services with a number of clients who are also members of the respondents. They will have become aware of his suspension from membership. I was advised by his counsel that he was concerned at the adverse effect on his reputation in his sphere of business that had ensued. That concern is readily understandable.

Notice of the "charge":
[26] Mr Seeley's letter of 8 June 2003 contains the only written intimation to the petitioner of the allegation that was being made against him. What it amounts to is a complaint that the petitioner was one of the group of people who were taking practice swings on the first tee at the time stated and generally causing a disturbance. There is also reference to the "general demeanour" of the petitioner and his guests until the time that they left the premises. No specification is given to the petitioner of what exactly it is that he is said to have done to have caused a disturbance nor what it was about his demeanour that gave cause for concern although the tenor of the letter is such that it seems that the petitioner was being criticised for the way that he had behaved on 2 June. Although the letter refers to the petitioner having returned to the course and to Mr Seeley having spoken to him after he had done so, that cannot, for the reasons that I have already given, be read as a reference to any further breach of the rules.

[27] It is, though, evident that the entirety of what was relied on by the Council in reaching their decision that the petitioner was in breach of rule X(2) went significantly beyond what was relied on by Mr Seeley in his letter to the petitioner. In particular, some account appears to have been taken of the terms of the letter of 28 June. Account appears to have been taken of the contents of Mr Forbes' letter which referred not only to the incident on the first tee but to conduct indoors. Account appears to have been taken of information regarding the events of the previous year given at the meeting by Mr Heanes. Account appears to have been taken of some unspecified incident that had occurred in 1990. Account appears to have been taken of the petitioner's failure to show remorse and of his having issued what was interpreted as being a threat. Also, the petitioner's return to the course later in the evening on 2 June, after he had changed into golf attire, is treated as a failure to comply with Mr Seeley's instructions although Mr Seeley's letter to the petitioner did not suggest to him that he had not been entitled to return to the course.

[28] Whilst Mr Hall had referred to the letters from Mr Forbes, Mr Robertson and Dr Stuart in the course of the meeting of 25 June with the petitioner, the respondents should have realised, from the terms of the third paragraph of his letter of 29 June that he was not at all clear what he was alleged to have done the previous year. They should also have realised, from the terms of that letter, that the petitioner had not understood that the meeting was to be a disciplinary meeting and that he did not understand the allegation being, at that time, levelled against him, to go beyond what was contained in Mr Seeley's letter to him of 8 June.

[29] What amounts to fair notice of the charges being levelled against a member of a voluntary association will clearly vary according to the facts and circumstances of the individual case. As was commented by Lord Mustill in the case of Doody at p.560:

"The standards of fairness are not immutable. They may change with the passage of time, both in the general and in their application to decisions of a particular type."

and at p.563:

"It has frequently been stated that the right to make representations is of little value unless the maker has knowledge in advance of the considerations which, unless effectively challenged, will or may lead to an adverse decision. The opinion of the Privy Council in Kanda v Government of Malaya [1962] AC 322,227 is often quoted to this effect. This proposition of common sense will in many instances require an explicit disclosure of the substance of the matters on which the decision maker intends to proceed. Whether such a duty exists, how far it goes and how it should be performed depend so entirely on the circumstances of the individual case that I prefer not to reason from any general proposition on the subject."

In that case and in the case of McAvoy, the issue under consideration was whether prisoners should have access to documents that were relied on by those making decisions about their continued incarceration. Public policy considerations required that they should not have access to the actual documents. It was in that context that it was said, in both cases, that the prisoners had a right to know the "gist" or "substance" of what was contained in those documents. It does not appear that it was intended, in either case, to give the impression that the decision maker was entitled to adopt a casual attitude to the need for fair notice to be given. Indeed, the contrary impression is given in Doody. At p. 563, Lord Mustill, having referred to a prisoner's right to make representations posed the question of whether he: "should know what factors the Home Secretary will take into account." He answers his own question as follows:

[30] "In my view he does possess this right, for without it there is a risk that some supposed fact which he could controvert, some opinion which he could challenge, some policy which he could argue against, might wrongly go unanswered"

In all the circumstances of this case, I have reached the conclusion that the respondents failed to give the petitioner fair and adequate notice of the entirety of the charges that were being levelled against him and which were to be considered by the Council at their meeting on 30 June. It is of particular concern that the petitioner seems never to have been given any specification of what it was about his behaviour, as opposed to that of the group of which he was a part, that was complained of and that he was not properly notified of the fact that he was being regarded as someone who had previously breached the respondents' rules on more than one occasion. Even less was there, apparently, any effort made to advise him what it was that he was said to have done the previous year that was objectionable. Again, criticism of the general behaviour of a group appears to have been treated as sufficient without addressing the question of what exactly the individual Society member was being criticised for.

[31] There is some indication from the terms of Mr Hall's report that the complaint about the petitioner was not so much that his behaviour was unacceptable but that he had a duty to ensure that those in whose company he was did not misbehave. There may, I suppose, be circumstances in which the Council could properly reach the view that a member's failure to ensure that others in his company behaved themselves had amounted to conduct likely to endanger the character, interests or good order of the Society but if that is the complaint against the member, it needs to be made clear. The respondents did not do so. Rather, matters seem to have proceeded on the basis that the petitioner was charged with having himself misbehaved in an unspecified way, as is the thrust of Mr Seeley's letter, or with having failed to control the behaviour of others in his group, as is the thrust of Mr Hall's report or, perhaps, with some combination of the two. I cannot see that such an approach was fair to the petitioner. There does not seem to be any question of him having been aware that that was the approach that was being taken.

".... we recognise that in the decision letter there is nothing to suggest that the disciplinary committee were in fact influenced by their knowledge of the earlier police warning, and that they were given adequate directions as to the test which they should apply in determining this complaint. However it is axiomatic that, in proceedings of this nature, justice must not merely be done, but must be seen to be done. In our opinion, even though the disciplinary committee may have applied the correct test, justice was not seen to be done because the members of the disciplinary committee had before them material which was irrelevant and which was prejudicial to the appellant. They were never told to disregard that material, and accordingly one cannot exclude the possibility that some, if not all, the members of the disciplinary committee were influenced to some extent by that objectionable material. For all these reasons we are satisfied that the decision of the disciplinary committee must be quashed."

I regard the circumstances of the present case as subject to the same criticism. It seems clear to me that, the members of the respondents' Council not only had before them information to the effect that the petitioner had been disciplined on previous occasions, but were influenced by it in reaching their decision as to whether or not he was in breach of the rule thus going further than had the committee in Murphy. Whilst I can see that that information may have been relevant when considering penalty, I do not see that it should properly have played any part in the decision as to whether, on 2 June, the petitioner had breached rule X(2). Indeed, it was accepted by the respondents that a two stage process was involved.

Right to a hearing:
[33] It was common ground between the parties that the petitioner had a right to be heard in response to the charges against him but that that did not necessarily mean that he had a right to be heard in person. The right is, of course, sometimes referred to in terms of the right to make representations (see: Doody at p.560). It is, though, clear that a person in the position of the petitioner in this case has a right to be given a fair opportunity to make his response to the charges against him known to the decision maker. And to afford him such an opportunity, it is not difficult to see that it may be necessary to inform him of the import of any statement put before the decision maker that is prejudicial to him, so that he can seek to correct or contradict it if he wishes to do so.

[34] In this case, the course adopted by the respondents involved the petitioner being denied the opportunity to be heard in respect of the entirety of the charges against him. His detailed response to the charges contained in Mr Seeley's letter was, surprisingly, not made available to the individual members of the Council. Had they read it, they would have seen that he was asking for details of what it was that was being alleged about his having been involved in a similar incident a year earlier. Had they read it, they would have seen that the petitioner, in his letter of 29 June, named three other members in whose company he had been on 29 June, persons who might well have been able to shed some light on what had occurred. Had they read it they would have seen that, for his part, he had not regarded the meeting of 25 June as a disciplinary meeting and that he thought that the respondents' investigations had yet to be completed.

[35] Further, had the Council members read the petitioner's letter, they would have seen the full terms of his response to Mr Seeley's charges. In the event, the opportunity to do so was withheld from them because of the procedure of paraphrasing that was adopted. The nature and extent of the paraphrasing is not clear from Mr McCulloch's affidavit. It is clear, though, that it was being done as Mr McCulloch was, himself, reading the letter for the first time and it may be that the challenge of having to do so without prior notice and at the end of a long Council meeting explains why he, erroneously in my view, presented it as being a letter written by way of mitigation rather than exculpation. It is, to the contrary, clear from the terms of that letter that the petitioner was seeking to exculpate himself. He takes exception to the charges contained in Mr Seeley's letter and refutes the allegations that he was guilty of misbehaviour, an approach which was consistent with the stance that he had adopted in the course of the meeting of 25 June, judging by Mr Hall's report.

[36] The petitioner was not, in the event, given any details of what it was that was being alleged against him in respect of an incident the previous year so he never had the opportunity to answer them, nor did any further investigations take place at that stage, although it is evident from a letter written by Mr Seeley on 2 July 2003 (7/9 of process), after the decision to suspend the petitioner had been taken, that some effort at further investigation was made subsequently. That seems curious in the circumstances.

[37] There are other aspects of the right to a fair hearing that require consideration in this case. Since the petitioner was not told about the letter of 28 June or about the information given to the Council from Mr Heanes (about the events of the previous year), or about the information given to them by Mr Kelly, he was deprived of the opportunity to offer a response regarding them.

[38] I should add that, from a reading of the documents it seems that the Council may have proceeded on the basis that they recognised the petitioner's right to a hearing but that the meeting of 25 June amounted to the petitioner having been afforded one. I do not, however, see that that meeting could properly be so regarded. The petitioner was never put on notice that that was the purpose of the meeting and he was presented, in the course of it, with allegations that he had not previously been aware of. Further, the basis on which the Captain and Green Ranger were holding that meeting is not at all clear. If a question arises as to whether or not a member has breached rule X(2), it is clear from the terms of the rule that it can only be answered by the Council. The order of events envisaged by the rule is that once the Council, presumably by way of some report about the member's conduct, are concerned that it may amount to conduct which endangers the character, interests or good order of the Society, they will call on the member for an explanation. Thereafter, they will decide whether there is a breach. The inference that arises is that that decision will take place at a meeting subsequent to the one at which the Council decides to call on the member for an explanation, by which time any explanation from the member will be available as will the outcome of any investigations that are determined upon. It is clear that it is only the Council that is empowered to call on the member to provide such an explanation. It also falls to be implied that it is only the Council that has the power to determine upon further investigation of the complaint. One way of doing that would, no doubt, be by delegating the task to a small group of Council members. But that is something that the Council would have to determine upon.

[39] No document was lodged by the respondents demonstrating that the Council had delegated the power to call for or receive a response in respect of the allegations regarding the petitioner, to the Captain and Green Ranger. Nor did any document indicate that there had been delegated to them the task of investigating the allegations. Counsel for the respondents indicated that there had been no specific delegation in respect of these matters. Rather, it was just what happened. I note that, there not having been a meeting of the Council between the events complained of and the meeting of 30 June, the Council had not had an opportunity to consider calling upon the petitioner for an explanation or to consider how they were going to investigate the allegations. They, clearly, did not do so. In these circumstances, the Council did not follow its own procedures, something of which it should have been aware.

Whether the Council acted impartially :
[40] In considering the allegations against the petitioner and determining upon a penalty, the respondents' Council was acting as a disciplinary body. As was commented by Lord Osborne, in the case of Brown v Executive Committee of the Edinburgh District Labour Party at p.989-990, a body which acts as a disciplinary body is performing a judicial duty and so requires:

"to bring to the discharge of that duty an unbiased and impartial mind. If he or she has a bias which renders him or her otherwise than an impartial judge, he or she is disqualified from performing that duty. Indeed, so jealous is the policy of the law of the purity of the administration of justice, that, if there are circumstances so affecting a person acting in a judicial capacity as to be calculated to create in the mind of the reasonable man a suspicion concerning that person's impartiality, the circumstances are themselves sufficient to disqualify, although in fact no bias exists. Further, when an allegation of bias is made out against one member of the collective body, that is sufficient to invalidate the decision of the whole body..."

[41] I am persuaded that, in the circumstances of this case, the reasonable observer would have had real suspicions of partiality. The participation, in the decision making process, of Mr Hall, Mr Kelly and Mr Heanes gives rise to that suspicion. That suspicion is compounded by the effect of Mr Seeley's presence during the deliberations.

[42] The problem with Mr Hall is that he, at the meeting of 25 June, effectively acted as prosecutor and judge of the petitioner. He laid allegations before the petitioner. He made it clear to him that he was himself "extremely annoyed" at his behaviour. He then wrote a report for presentation to the Council containing the conclusions to which I have referred, the final one of which was that the petitioner was in breach of rule X(2). He, accordingly, had prejudged the matter of whether the petitioner's conduct breached the rule, prior to the Council meeting. He then presented his report to the Council, at a meeting which he chaired, recommended that they should find the petitioner in breach of the rule and recommended that the maximum penalty available be imposed. Mr Kelly was present at the meeting of 25 June and there is nothing in Mr Hall's report to suggest that he demurred from any of the conclusions contained in it. Further, Mr Kelly gave "evidence" to the Council regarding what was said by the petitioner and what was his attitude, as I have already indicated. Mr Heanes gave 'evidence' to the Council regarding what had occurred the previous year from his perspective as having been a witness to those events, whatever they were. The presence of these persons at the Council meeting and their participation in the decision making process is directly comparable, in my view, to the position of the councillors whose participation in the disciplinary proceedings in the Brown case was enough to constitute a prima facie case of such partiality as to breach the rules of natural justice.

[43] As regards Mr Seeley, whilst he did not participate in the decision making process, not being a member of the Council, the complaint regarding the petitioner's behaviour on 2 June had emanated from him. It is clear from the terms of his letter of 8 June 2003 that his view was that the petitioner had misbehaved in an unacceptable fashion. Again, I conclude that the reasonable observer would have been liable to have created in his mind a suspicion of lack of impartiality in the proceedings, as a result of Mr Seeley's presence during the decision making process. His circumstances were not so extreme as those of the club member in the Graham case who had not only been the complainer in an allegation that the pursuer had assaulted him but had participated in the management committee's deliberations and voted for the pursuer's suspension. The willingness of the Council to have Mr Seeley present during their deliberations, though, casts doubt on their impartiality and the fairness of the decision deliberated upon and reached in the presence of the complainer is called into doubt. Had Mr Seeley's presence been the only problem then a conclusion of overall impartiality may not have been reached. However, his presence was not the only problem and it certainly exacerbates the more significant difficulties presented by the presence and participation of the three Council members to whom I have already referred. The failure of the Council to make any enquiries of the three members whose names were provided in the petitioner's letter of 29 June further exacerbates the impression of partiality, in my view.

[44] I have given consideration to the submission advanced on behalf of the respondents to the effect that the decision to suspend the petitioner should not be found to have been tainted by the participation and presence of those persons to whom I have just referred because, in an organisation such as the respondents, those who decide disciplinary matters will, inevitably, have prior knowledge of the members about whom they make decisions. The submission was advanced under reference to the cases of Lewis and Ward, but I cannot see that anything said in either case leads to the conclusion that the presence and participation of those persons appears fair and impartial in the circumstances of this case. Indeed, the decision in Ward supports the argument advanced on behalf of the petitioner in this case. In Ward the decision of the governing body of a teacher training college to uphold the findings of a disciplinary committee in respect of the conduct of a group of students was examined. That body having been careful to avoid having any of the committee members take part in its decision to approve the committee's findings, they were said to have thereby avoided laying themselves open to the criticism that they were acting as both prosecutor and judge. The implication is that had they not done so that is a criticism to which they would have been vulnerable.

[45] I would, accordingly, contrary to the respondents' submission on this matter, tend to the view that where a body such as the Council in this case, has prior knowledge of a member about whom they have to make an important decision which is potentially adverse to his interests, they require to be vigilant to avoid the risk of creating any impression of partiality which such prior knowledge may engender. That may, as in the case of Ward require them to adopt procedures designed to avoid laying themselves open to the charge of bias. The respondents did not, however, do so in this case.

The failure to provide reasons and the lack of a right of appeal:
[46] This matter can be dealt with in fairly short compass. By letter dated 1 July 2003 (6/6 of process), Mr Seeley advised the petitioner that the Council had concluded that his conduct endangered the character, interests and good order of the society and that their unanimous decision was to suspend him from membership for a period of 12 months. He was given no reasons for the Council decision. There is, in terms of the respondents' rules, no right of appeal available to the petitioner against the decision of the Council whether in respect of the finding of breach or in respect of penalty. Whilst it is clear from the authorities that a failure to give reasons or a failure to provide a right of appeal do not, of themselves, constitute a breach of natural justice, I agree that it when viewed in the light of the whole circumstances of this case, they exacerbate the overall view of a clear breach of natural justice having occurred. If, for instance, the decision on penalty is examined, far from it appearing that the unavailability of a right of appeal made the Council cautious in their approach, one gets the impression that it actually encouraged them in their decision to impose the maximum penalty.

Conclusion
[47] Once all of the above circumstances are taken into account, I have no difficulty in reaching the overall conclusion that the petitioner is well founded in his submission that the suspension of his membership was determined upon in a manner which contravened the rules of natural justice. I do not, in so determining, have to decide whether the petitioner is right to characterise the respondents' actings as amounting to a witch-hunt although it is not difficult to appreciate that that is how, in the circumstances, he might feel. I simply observe that there emerges from the material put before me a clear desire on the part of the respondents to punish the petitioner arising from prejudgment of the issue that the Council had to determine, that does them no credit.

[48] I will accordingly, sustain the petitioner's first and second pleas-in-law and reduce that decision. It follows that I will repel the respondents pleas-in-law. As regards the petitioner's membership dues, I am satisfied that it is appropriate that an order should be made requiring the respondents to refund the proportion of them that constitutes wasted expenditure as relating to the period of the petitioner's suspension and I will put the case out by order for parties to address me as to the precise sum which now falls to be refunded to him.